NECHYPORENKO A OSTATNÍ proti Ukrajině

FIFTH SECTION

DECISION

Application no. 32522/19
Tetyana Vasylivna NECHYPORENKO against Ukraine
and 2 other applications
(see list appended)

The European Court of Human Rights (Fifth Section), sitting on 9 March 2023 as a Committee composed of:

Stéphanie Mourou-Vikström, President,
Lado Chanturia,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the applications to the Ukrainian Government (“the Government”) represented by their Agent, Mr I. Lishchyna, from the Ministry of Justice;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the applications nos. 32522/19, 33081/19 and 33100/19 by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicants’ allegations that they were denied a lump-sum allowance provided for by law for police officers upon retirement, in a discriminatory manner in violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.

2. On various dates in 2017 and 2018 the applicants took voluntary retirement from the police force. Around the same time all three of them were diagnosed with health problems related to their police service.

3. All three applicants asked the Cherkasy Police Department to pay them the lump sum provided for by section 97(1)(4) of the National Police Act in the case of the disability of a police officer. The relevant provision indicated that the sum in question was to be paid where “a police officer was found to have a disability as a result of a disease related to his or her service in the departments of internal affairs or police within six months of his or her retirement from the police service for the reasons specified in this paragraph”. The applicants’ requests were ultimately rejected by the Police Department because they had retired not for health reasons but voluntarily. The applicants subsequently challenged those rejections before the domestic courts, including the Constitutional Court. The domestic courts rejected the applicants’ administrative claims (for more details see the appended table), while the Constitutional Court accepted the constitutional appeal by the applicant Mr Davymoka and examined it on the merits.

4. The Constitutional Court found the contested provision of the National Police Act to be constitutional. The court noted that the domestic law provided for various social benefits for police officers, including those related to disability. Unlike other social benefits, the lump sum in question was a one-time payment for those police officers who could not continue their service for health reasons and so had to leave the police force. It concluded that the fact that the established procedure, which required police officers to indicate health problems as the reason for their retirement, allowed no exceptions and did not make the procedure discriminatory.

THE COURT’S ASSESSMENT

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

6. The Government submitted that by not following the established procedure the applicants had been precluded from receiving the lump sum in question. Therefore, they had no rights or legitimate expectations and thus their complaints were incompatible ratione materiae with the Convention. They further maintained that the applicants Ms Nechyporenko and Mr Golka had not exhausted domestic remedies given that Ms Nechyporenko had not lodged a constitutional complaint, whereas the complaint of Mr Golka had been rejected by the Constitutional Court as unsubstantiated.

7. The applicants disagreed. In particular, Ms Nechyporenko provided information about having lodged a constitutional appeal.

8. In so far as the Government raised the issue of non-exhaustion of domestic remedies, the Court notes that all three applicants lodged constitutional appeals couched in very similar terms, and the appeals of Mr Golka and Mr Davymoka were word-for-word identical in their reasoning. Therefore, even assuming that taking a case to the Constitutional Court was an effective remedy as suggested by the Government, all three applicants appear to have raised their Convention complaints in their constitutional appeals and the fact that only one of the three appeals lodged was accepted for consideration by the Constitutional Court could not be used against the applicants.

9. As to the other objection to admissibility raised by the Government, the Court reiterates that although Article 1 of Protocol No. 1 does not include the right to receive a social-security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2005‑X). It is not in dispute in the present case that the applicants had work-related health problems and retired from the police. Therefore, the only distinction between them and other police officers in a similar situation was whether or not they had followed the procedure established by law in order to be entitled to the lump sum in question.

10. The Court reiterates that Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. For the purposes of Article 14 of the Convention, a difference in treatment is discriminatory if it has no objective or reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see Bulgakov v. Ukraine, no. 59894/00, § 57, 11 September 2007).

11. In the present case, the State authorities established a procedure for payment of the lump sum in question and the fact that it allowed no exception to the rule did not of itself make that procedure discriminatory. There is nothing in the case file or the parties’ submissions to suggest that the requirements set out in section 94(1)(4) of the National Police Act were unreasonable or difficult to comply with. Neither did the applicants claim that the procedure for dismissal on health grounds was so complicated in comparison with the procedure for leaving voluntarily that it would amount to a difference in treatment. In these circumstances, the Court concludes that the applicants’ complaints are unsubstantiated.

12. Accordingly, the applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 30 March 2023.

Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President

Appendix

List of cases